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decided: April 28, 1978.



Hugh C. Clark, Philadelphia, for appellant.

Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion. Hoffman, J., files a dissenting opinion. Watkins, former President Judge, did not participate in the consideration or decision in this case.

Author: Price

[ 255 Pa. Super. Page 290]

Appellant was tried before a judge and jury on December 13 through December 19, 1974, and convicted of robbery,*fn1 aggravated assault,*fn2 simple assault,*fn3 possessing instruments of crime*fn4 and possessing a prohibited offensive weapon.*fn5 A sentence of ten to twenty years imprisonment was imposed

[ 255 Pa. Super. Page 291]

    on the robbery conviction and a concurrent term of two to four years was imposed on the weapons offenses. Sentences on the other convictions were suspended. This case is before us on direct appeal. We affirm the judgment of sentence.

On September 2, 1974, Maureen Stewart and Theresa Liberi left the Theater of Living Arts, near Fourth and South Streets in Philadelphia, about 11:00 p.m. They walked approximately a block, to Fourth and Lombard Streets, to wait for a bus. While the two were waiting, a man approached them and and asked when the bus was due. Not long thereafter, the man asked Miss Stewart for a match, which she replied she did not have. After some further remarks were exchanged, as Miss Stewart turned to resume conversation with her companion, she was stabbed in the back. Although Miss Stewart was unable, due to her position, to observe her assailant, Miss Liberi saw the man stab her friend. Miss Stewart cried out that she had been stabbed and began to scream for assistance. Miss Liberi tried to ward off the attacker with her hands, but was cut on one hand and stabbed in the side.

Miss Stewart fled across the street but the man pursued her, still brandishing the weapon, and pinned her against a car. At this point, seeing her assailant preparing to strike another blow, Miss Stewart took off her shoulder bag and threw it to him, telling him to take it, "that it had a lot of money." (NT 110). The man replied, "Give it to me, bitch" (NT 110), and took the purse. Both women fled, and were soon aided by people from the neighborhood, who called the police and took the victims to the hospital. A police team which examined the scene of the crime found blood on the street, blood on the car against which Miss Stewart had been pinned, and a blood-stained knife.

Shortly after Misses Stewart and Liberi arrived at nearby Pennsylvania Hospital for treatment, the police began to bring in suspects for possible identification. The women, who were separated, were each shown three individuals, one at a time. Both women positively identified the third suspect as the man who had assaulted and robbed them.

[ 255 Pa. Super. Page 292]

Appellant's opening assignment of error is the lower court's refusal to suppress the identifications made by the victims in the hospital. The first basis for suppression asserted is that this confrontation was in violation of appellant's right to counsel under the decisional law of this state.*fn6 In Commonwealth v. Richman, 458 Pa. 167, 171, 320 A.2d 351, 353 (1974), our supreme court stated that " Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738 (1970), appropriately draws the line for determining the initiation of judicial proceedings in Pennsylvania at the arrest." Correspondingly, the court held that in Pennsylvania the right to counsel at a lineup attaches at the same juncture. There is, however, a significant difference between the institutional lineup situation in Commonwealth v. Richman, supra, and the facts of the instant case.

Officer Iacuzio of the Philadelphia Police testified that he and his partner, Officer Dizio, arrested appellant at approximately 12:25 a.m. on September 3, 1974, in the Clam Bar on the corner of Passyunk and Fitzwater Streets in Philadelphia. (NT 171). The circumstances were as follows. As Officer Iacuzio entered the establishment, he saw appellant sitting at the bar having a drink. His attention was attracted by appellant's clothing, which included a multicolored shirt and a tan jeff cap. Similar items of apparel had been mentioned in a police radio broadcast describing a man involved in a purse snatching in the vicinity of Fourth and Lombard Streets earlier in the evening. Officer Iacuzio returned to the police vehicle, parked near the door of the bar, to check the description over the radio. Having confirmed his recollection, he reentered. Appellant arose and moved to the back of the bar, in the direction of the men's

[ 255 Pa. Super. Page 293]

    room. Officer Dizio went around to the bar's other entrance. After checking the men's room and finding appellant not to be inside, Officer Iacuzio turned to his left and saw appellant emerging from steps which led down to the basement. Appellant was wearing only a black, perforated T-shirt on his upper body. Officer Iacuzio asked what he had done with the other clothing, and appellant denied he had been wearing anything else. After placing appellant under arrest, Officer Iacuzio descended to the basement, where he found the hat and shirt appellant had previously worn. The officers immediately transported appellant to Pennsylvania Hospital for possible identification.

Although Officer Iacuzio told appellant that he was under arrest, this fact alone does not require suppression of the hospital identifications. It is apparent, with or without the officer's testimony, that appellant had been subjected to "arrest" in the broadest sense of that term, see Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969), when the police escorted him from the Clam Bar. However, for several reasons, we find that appellant's right to post-arrest counsel under Commonwealth v. Richman, supra, was not violated.

First, we find this case to be, in its salient factors, similar to Commonwealth v. Ray, 455 Pa. 43, 315 A.2d 634 (1974), and controlled by the holding in that opinion rather than by the rule in Richman. In Ray, a gunman attempted an early morning robbery of a motel office. The night clerk took advantage of an opportunity to call for help and the intruder fled. Pursuing, the clerk saw the man enter the passenger side of an automobile parked approximately 150 feet down the highway and drive away. The clerk contacted the police and gave a description of the robber and the car. Not long thereafter, an automobile meeting the description was stopped nearby for speeding. A passenger in the vehicle appeared to meet the depiction of the would-be bandit, so the police contacted the motel clerk to see if he could identify the suspect. The clerk accompanied a police officer to a parking lot where the car and its passengers had been

[ 255 Pa. Super. Page 294]

    detained and identified Ray, who was still seated in the auto. The identification took place approximately fifty minutes after the attempted robbery.

There are several clear parallels between the facts in Ray and the circumstances presented in the instant case. The victims in both cases had excellent opportunities to view their assailants. In each case the suspect was identified within a relatively short time following the crime. In both cases the men were detained following apprehension, and subjected to a prompt identification procedure prior to any further police action. The court in Ray states that "[h]e had not been arraigned or otherwise charged with any crime, nor had any other formal criminal proceedings been brought against him. Indeed, he had not even been formally arrested . . . ." Commonwealth v. Ray, supra, 455 Pa. at 49, 315 A.2d at 636. The events prior to and including the identification are characterized as "the preliminary phase of the investigation." Commonwealth v. Ray, supra, 455 Pa. at 51 n. 8, 315 A.2d at 637 n. 8. Although the court in Ray describes the suspect as being "detained" pending the identification, it is clear that Ray was no less subject to police custody and control than appellant. Further, it is reasonable to assume that had the victims in this case found that appellant was not the man who had attacked them, appellant would have been released and the search would have been resumed. To distinguish this case from Ray solely on the fact that appellant was told he was under arrest, when it is clear that the suspects in both cases were similarly deprived of their ability to refuse cooperation and both were thus includable within the broad definition of arrest, would be artificial and logically insupportable.

Another important similarity between Ray and the case before us is that neither victim-suspect confrontation took place at the actual scene of the crime. Ray was identified as he sat in the car, not standing in the motel office. Appellant herein was identified in a hospital rather than on the street. We discern nothing so specially ...

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